Practising Virtue Inside International Arbitration

by Caron, David D.; Schill, Stephan W.; Cohen Smutny, Abby; Triantafilou, Epaminontas E.

• ISBN13: 9780198739807
• ISBN10: 019873980X
• Format: Hardcover
• Copyright: 2016-01-12
• Publisher: Oxford University Press

Summary

International arbitration has developed into a global system of adjudication, dealing with disputes arising from a variety of legal relationships: between states, between private commercial actors, and between private and public entities. It operates to a large extent according to its own rules and dynamics - a transnational justice system rather independent of domestic and international law.

In response to its growing importance and use by disputing parties, international arbitration has become increasingly institutionalized, professionalized, and judicialized. At the same time, it has gained significance beyond specific disputes and indeed contributes to the shaping of law. Arbitrators have therefore become not only adjudicators, but transnational lawmakers. This has raised concerns over the legitimacy of international arbitration.

Practising Virtue looks at international arbitration from the 'inside', with an emphasis on its transnational character. Instead of concentrating on the national and international law governing international arbitration, it focuses on those who practice international arbitration, in order to understand how it actually works, what its sources of authority are, and what demands of legitimacy it must meet. Putting those who practice arbitration into the centre of the system of international arbitration allows us to appreciate the way in which they contribute to the development of the law they apply. This book invites eminent arbitrators to reflect on the actual practice of international arbitration, and its contribution to the transnational justice system.

Author Biography

David D. Caron, Dean, The Dickson Poon School of Law, King's College London,Stephan W. Schill, Professor of International Economic Law and Governance, University of Amsterdam,Abby Cohen Smutny, Partner, White & Case LLP,Epaminontas E. Triantafilou, Of Counsel, Quinn Emanuel Urquhart & Sullivan LLP

David D. Caron is Dean and Professor of Law at The Dickson Poon School of Law, King's College London, and is a Barrister and Arbitrator with 20 Essex Street Chambers.


Stephan W. Schill is Professor of International and Economic Law and Governance at the University of Amsterdam and Editor-in-Chief of the Journal of World Investment and Trade.


Abby Cohen Smutny is a Partner of the law firm White & Case LLP where she co-heads the firm's international arbitration practice in the Americas and heads the firm's public international law practice.

Epaminontas E. Triantafilou is Of Counsel in the International Arbitration Group of Quinn Emanuel Urquhart & Sullivan LLP and Co-Managing Editor of the World Arbitration & Mediation Review.

Table of Contents

Practising Virtue: An Introduction, David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas Triantafilou
Part I: International Arbitration as Part of the Transnational Justice System
1. The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions, Sundaresh Menon
2. The Changing World of International Arbitration, Alan Redfern
3. International Commercial Arbitration and Investment Treaty Arbitration, Piero Bernardini
4. International Jurisprudence, Global Governance, and Global Administrative Law, Eduardo Zuleta
5. The Culture of Arbitration and the Defence of Arbitral Legitimacy, James H. Carter
6. Conceptions of Legitimacy in International Arbitration, Stephan W. Schill
Part II: History and Sociology of International Arbitration
7. The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator - From Miami to Geneva, V.V. Veeder
8. 'Black's Bank' and the Settlement of Investment Disputes, Antonio R. Parra
9. Judge Sir Hersch Lauterpacht's Report on the Revision of the Statute of the International Court of Justice, Stephen M. Schwebel
10. Jurisdictional Errors: A Critique of the North American Dredging Company Case, Oscar M. Garibaldi
11. Sociology of International Arbitration, Emmanuel Gaillard
12. From Law Professor to International Adjudicator: The WTO Appellate Body and ICSID Arbitration Compared - A Personal Account, Giorgio Sacerdoti
13. The Advocate in the Transnational Justice System, Donald Francis Donovan
Part III: Authority of International Arbitral Tribunals and Its Limits
14. Pre-Arbitration Procedural Requirements: 'A Dismal Swamp', Gary Born and Marija Scekic
15. At What Time Must Jurisdiction Exist?, Christoph Schreuer
16. Local Remedies in International Treaties: A Stocktaking, Rudolf Dolzer
17. Investor-State Tribunals and National Courts: A Harmony of Spheres?, L. Yves Fortier
18. Should International Commercial Arbitrators Declare a Law Unconstitutional?, Horacio A. Grigera Naon
19. The Enforceability of Legislative Stabilization Clauses, Joseph E. Neuhaus
20. Non-Payment of Advances on Costs: No Pay, Can Play?, Neil Kaplan
21. Document Production and Legal Privilege in International Commercial Arbitration, Julian D.M. Lew
22. Fair and Equitable Treatment of Witnesses in International Arbitration - Some Emerging Principles, David A.R. Williams and Anna Kirk
Part IV: Reasoning and Decision-Making in the Arbitral Process
23. Regulating Opacity: Shaping How Tribunals Think, David D. Caron
24. The Development of Legal Argument in Arbitration: Law as an Afterthought - Is It Time To Recalibrate Our Approach?, Judith A.E. Gill
25. Babel and BITs: Divergence Analysis and Authentication in the Unusual Decision of Kilic v. Turkmenistan, Mahnoush H. Arsanjani and W. Michael Reisman
26. Reporting from the Arbitral Shop-Floor: Treaty Interpretation in Practice, Kaj Hober
27. Judge Brower and the Vienna Convention Rules of Treaty Interpretation, Stanimir A. Alexandrov
28. Contemporaneity and Its Limits in Treaty Interpretation, Epaminontas E. Triantafilou
29. Deliberations of Arbitrators, Richard M. Mosk
30. Charles Brower's Problem with 100 Per Cent-Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration, Albert Jan van den Berg
31. How to Draft Enforceable Awards under the Model Law, Michael Hwang and Joshua Lim
Part V: Studies in Investment Treaty Arbitration
32. The Deal with BITs: What the Parties Thought They Would Get, What They Thought They Were Giving Up to Get It, and What They Got, O. Thomas Johnson
33. Reflections on 'Most Favoured Nation' Clauses in Bilateral Investment Treaties, Christopher Greenwood
34. The Non-Disputing State Party in Investment Arbitration: An Interested Player or the Third Man Out?, Loretta Malintoppi and Hussein Haeri
35. Time in International Law and Arbitration: The Chess Clock No Longer Works, Francisco Orrego Vicuna
36. Challenges to Arbitrators in ICSID Arbitration, James Crawford
37. 'Pure' Issue Conflicts in Investment Treaty Arbitration, Gavan Griffith and Daniel Kalderimis
38. CompensationDue in the Event of an Unlawful Expropriation: The 'Simple Scheme' Presented by Chorzow Factory and Its Relevance to Investment Treaty Disputes, Abby Cohen Smutny
39. FutureDamages in Investment Arbitration - A Tribunal with a Crystal Ball?, Hans van Houtte and Bridie McAsey
40. Allocation of Costs in Recent ICSID Awards, Arthur W. Rovine
41. The Two Annulment Decisions in Amco Asia and 'Non-Application' of Applicable Law by ICSID Tribunals, Carolyn B. Lamm, Eckhard R. Hellbeck, and David P. Riesenberg
42. Of Wit, Wisdom, and Balance in International Law: Reflections on the Tokyo Resolution of the Institut de Droit International, Pierre-Marie Dupuy and Julie Maupin